The Dust Begins to Settle on the Republican Win of Control of the House and its Deep Cut Into the Democratic Majority in the Senate

It has been nearly three weeks now since the nation voted in the 2010 mid-term elections.
There was still one disputed Senate election at the time of this writing. However, the seat is certain to be won by a Republican. Accordingly, it is that Democrats will have a 53-47 organizational majority in the Senate during the 112th Congress.

The outcome of five House races were still in doubt at the time of this writing. MicEvHill.Com estimates that once those races are finalized (some might not be finalized until after January 3, 2011, when the new Congress is sworn in), Republicans will have gone from a 178-255 minority in the 111th Congress to a 243-192 majority in the 112th Congress. Should these numbers pan out, the Republicans would have picked up a net of 65 seats in the mid-term elections, which would make it the second largest pickup of seats since World War II. However there is a possibility that Republicans might pick up two fewer seats, depending on the results of two razor-thin races in New York.

From an immigration perspective, some of the results of the 2010 mid-term elections were stunning:

Congressional Hispanic Caucus Losses in the House. Three members of the Congressional Hispanic Caucus (CHC) lost their bids for reelection to Republican challengers: Representative Ciro Rodriguez (D-TX), Representative Solomon Ortiz (D-TX, and Representative John Salazar (D-CO). This is an important development, not just because of the symbolism of electoral losses by these staunchly pro-immigrant Members. But it also is important because it may well have provided immigration restrictionists with a model for winning seats in CHC districts in the furture: recruit conservative Hispanic Republicans to run against CHC Members and then flood the district with massive amounts of television ads and money that CHC Members will have difficulty competing with.

Election of Immigration Restrictionist-Oriented Hispanic Republicans. Six Hispanic Republicans were elected to either the House or the Senate on immigration restrictionist platforms. This includes Senator-Elect Marco Rubio (R-FL) who was elected to the U.S. Senate. It also includes Representatives-Elect Quico Canseco (R-TX), Bill Flores (R-TX), Jaime Herrera (R-WA), Raul Labrador (R-ID), and David Rivera (R-FL). This is an important devlopment, in that it could enable immigration restricionists in Congress to make some of these new anti-immigrant Republican Hispanics the face of some of their iestrictionist legislative efforts, thereby dulling any charges that pro-immigrant Hispanics might make that their immigration restrictionist legislation is anti-Latino or anti-Hispanic. Additionally, two Hispanic Republicans who ran largely on immigration restrictionisit platforms were elected the governors of New Mexico and Nevada. There already is talk in Washington of Senator-Elect Marco Rubio or Governor-Elect Susana Martinez (R-NM) being possible Vice Presidential running mates for whoever winds up winning the 2012 Republican Presidential nomination, an eventuality that could have a profound impact on that election.

Dramatic Increase in the Number of Immigration Restrictionists in the House. As the 111th Congress drew to a close, there were 193 pro-immigrant Members of the House, 191 immigration restrictionists, and 49 Members whose voting patterns made them swing-votes. The number of immigration restrictionists in the House during he 112th Congress will be dramatically higher. At a minimum, there will be 243 immigration restrictionists, which is 25 more than a majority. By way of comparison, there were only 233 immigration restricionists in the House during the 109th Congress, the Congress that produced House passage of the Sensenbrenner immigration enforcement bill, the REAL ID Act, the SAVE Act, and legislation requiring the construction of 700 miles of double-layered fencing along the U.S. border with mexico.

More Difficult Path to a Bipartisan Filibuster-Proof Immigration Majority in the Senate. As the 111th Congress drew to a close, there were 50 reliable pro-immigrant votes in the Senate, 36 reliable immigration restrictionist votes, and 14 swing votes. This made it at least theoretically possible for a bipartisan coalition of 60 votes to be put together on an important immigration matter. The results of the 2010 mid-term Senate elections make it exceedingly difficult for such a filibuster-proof supermajority to be put together on immigration during the 112th Congress. The number of pro-immigrant votes in the Senate has shrunk to 44 in the 112th Congress. Moreover, the number of senators who are expected to be reliable votes for immigration restrictionist positions has mushroomed from 30 during the 111th Congress to 43 during the 112th Congress, a number that is enough to mount a successful filibuster without resort to the swing votes.

Uncertainty Anout the Attitude of the House Democratic Leadership. Usually, when a party loses a chamber by such a stunning and historic margin, the party shakes up its leadership as it goes into the next Congress. House Democrats, however, are expected to return its entire Leadership to their respective positions in the 112th Congress. Not that it will matter who will be in the House Democratic Leadership during the next Congress. Democrats will be in the minority in the House during the 112th Congress and, as such, will have no power to set the schedule or shape the terms of floor debate. About the only power they will have will be the power to offer motions to recommit bills. Given how the House Democratic Leadership totally ignored and ran away from immigration when it had a 70-seat majority. It is difficult to imagine that it would permit pro-immigrant Members to offer pro-immigrant motions to recommit measures now that they will be in the minority. That notwithstanding, the House Democratic Caucus will be significantly more unified in its support for immigration during the 112th Congress than it was during the 111th Congress, owing to the defeat of so many moderate-to-conservative Democrats who were not reliable supporters of the pro-immigrant advocacy community. Indeed, during the 111th Congress, just over 74 percent of the House Democratic Caucus voted pro-immigrant. It is projected that 87 percent of the caucus will vote pro-immigrant during the 112th Congress.

Likely Aggressive Anti-Immigrant Agenda Coming Out of the House. If history is a guide, it can reasonably be expected that House Republicans will put forward an aggressive immigration agenda during the 112th Congress. Indeed, the policy proposals that House Republicans included in their September 2010 "Pledge to America" conjured up imagery of the "Contract With America" that House Republicans rode to a majority in 1994 and that spawned three of the most vilified (in the case of the pro-immigrant advocacy community) and celebrated (in the case of the immigration restrictionist advocacy community) immigration laws in recent memory: the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which ushered expedited removal into law; the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PROWRA), that enacted the current regime with regard to benefit ineligibility for both legal and illegal immigrants; and the illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), that eliminated judicial and administrative discretion, made a host of relatively minor crimes deportable offenses, and imposed many of its provisions retroactively.

Some may find the immigration, border security, and visa security items in the 2010 House GOP "Pledge to America" tame in comparison to the immigraiton legislation that flowed from the 1994 "Contract with America." They certainly did not live up to the recent red hot rhetoric that has emanated from some House and Senate Republicans on such matters as birthright citizenship and the recently enacted Arizona immigration enforcement law. But in reality, despite the fact that three major immigration laws flowed from the 1994 "Contract With America," that "Contract" never once mentioned the words "immigration", "border", or "alien". Moreover, at least two of the items in the 2010 House GOP "Pledge to America" document bear a resemblance to two immigration restrictionist bills from the 111th Congress that are anathema to the pro immigrant advocacy community: H.R. 2406, the CLEAR Act, and H.R. 3308, the SAVE Act.

It seems likely that the House GOP will strike act on immigration in at least three different ways. during the 112th Congress. First, it likely will embed immigration restrictionist provisions into many of the bills that it brings to the House floor -- even on bills that seemingly are unrelated to immigration. Second, the House GOP likely will include immigration enforcement riders in the major appropriations bills that it brings before the House. And third, House Republicans likely will bring several sweeping, standalone immigration enforcement bills before the House during the 112th Congress.

Given that Republicans will have at least 240 votes in the House and a unified conference, there is little that pro-immigrant advocates will be able to do to stop the legislation from passing the House. Indeed, it might even be foolhardy to assume that Senate Democrats or President Obama will have the political will or courage to be a firewall stopping much of the legislation.

About The Author

Micheal E. Hill, the operator of the MicEvHill.Com website, has been lobbying Congress and the Executive branch since 1989. He has done so on a variety of issues, including immigration law, refugee law, intellectual property law, telecommunications law, and religious freedom issues.
Prior to becoming a lobbyist, Mr. Hill served for more than a decade on Capitol Hill in a variety of legislative and administrative capacities. During that time, he worked on both the House and Senate sides of the United States Capitol building, working at times for both Democrats and Republicans.
Mr. Hill has been involved in virtually every major change in immigration and refugee law during his 20 years of lobbying on those issues, often helping to initiate important and significant legislative proposals.
He has spoken on immigration law before numerous conferences, been published in journals on immigration law and politics, and lectured on immigration law at Georgetown University Law Center, Columbia University, and Princeton University.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.